Rough justice

The Trial: a history from Socrates to O J Simpson

Sadakat Kadri <em>HarperCollins, 474pp, £25</em>

At the start of any trial, those who judge are required to disclose their biases, the better for observers to discount their opinions. I disclose mine. I have always aspired to the role played by Colin Firth in The Hour of the Pig, defending the sow in a 15th-century capital trial in France. It seemed such a fruitless but honourable task.

Sadakat Kadri's book on the history of the trial has a chapter devoted to the trials of animals. He unearths one tale after another, and most of the menagerie from Noah's Ark seems to have ended up in the dock. After detailing the facts of the crime, Kadri tells how, in 1095, the prosecutor Ivo of Chartres argued that animals which participated in bestiality should be executed, the "destruction of such creatures serv[ing] to suppress even the memory of their shameful acts". The same chapter also deals with the prosecution of dead people - trials usually motivated by the government's desire to deprive their heirs of any property. For those of us who wonder that America's death-row prisoners have no right to counsel for their decade of appeals, it is sobering to think that, 300 years ago, dead defendants had the right to legal aid in France. Prisoners on our side of the mortal divide were less fortunate, allowed neither lawyers nor witnesses for their defence.

Kadri's pages are full of such legal ephemera: for example, it was once a capital offence to fail in your suicide attempt. Yet there are two important omissions. First, Kadri's account suffers from parochialism. Although he does supplement what would otherwise be a purely Anglo-American analysis with a glimpse at the follies of France and the sadism of Stalin's Russia, a complete history of the trial cannot ignore five of the seven continents. One purpose of revisiting the past is to inform our current debate. Contrary to the prejudices that permeate our media, Islamic legal scholarship has had much to say about forgiveness, the insanity defence and many other enlightened principles that have been eroded in western legal systems.

Second, Kadri might have considered how our own trials will be the object of derision in years and centuries to come. Take the problem of false confessions. Few judges, and fewer jurors, are willing to entertain the notion that prisoners will make statements that are flagrantly against their self-interest, and yet experience teaches us that it happens all the time. Kadri describes witch trials in which prisoners admitted to meetings with Satan. Statements almost as self-evidently false continue to be cajoled from suspects today, with consequences almost as terrible as burning at the stake: 21 per cent of wrongful convictions in the US result from a false confession, and many of these prisoners end up on death row.

We know some of the contemporary flaws of the trial process, even if we underestimate their impact. The greater challenge is to identify the unknown un-knowns, the Flat Earth Society theories that continue to infiltrate the law to torment the innocent. To give just one example: a Mississippi jury sentenced my client Bryan Kolberg to death because a bevy of doctors in white coats said it was impossible for an infant to sustain a fatal head injury from an accidental fall of five feet. This is still medical orthodoxy in the US today. On the basis of similar medical hubris, scores of British women have been sentenced to prison for complicity in the deaths of their children, and only now are we beginning to apologise.

Perhaps Kadri displays a little too much faith in the present. Writing of Stalin's show trials, he remarks that it is "all but inconceivable that a spectacle as stage-managed will ever be seen in a west- ern democracy". Given the Guantanamo Gulag, surely the US is a contender here: when Salim Ahmed Salim Hamdan became one of only four out of 540 prisoners to be offered a military trial, he was told he could have a lawyer only if he agreed to enter a public guilty plea to the US government's allegations.

Sadly, the contemporary parallels are legion. Kadri describes how Sir Walter Raleigh, at his treason trial, held 402 years ago, was not permitted to confront the witnesses against him, whose written evidence had been extracted under torture. Tony Blair's government proposes something similar today. At least Raleigh got to hear the unreliable evidence that was being used against him, which is more than can be said of the Guantanamo and Belmarsh detainees.

Ultimately, however, this book amply demonstrates the principle that the past eternally rebukes the present. Each generation identifies its preferred villains and dissolves due process in order to convict and vilify them. Kadri notes that the French jurist Jean Bodin insisted that prosecutors must sometimes skirt the rules, as there are crimes "'so obscure and . . . mischiefs so hidden' that 'not one out of a thousand . . . would be punished' unless lawyers circumvented obstacles to conviction". This applies as much to those counselling George Bush on his war on terror as it did to Bodin, speaking of heretics in 1580.

Clive Stafford Smith is a human rights lawyer